Friday, September 30, 2011

"We reverse the trial court's dismissal of charges. Who do you think we are: the Ninth Circuit? They might dismiss criminal proceedings when a prosecutor deliberately commits perjury. But we won't. Not here, anyway."

The Log Cabin Republicans challenged the Don't Ask Don't Tell policy, and the district court concluded that this policy was unconstitutional. The United States filed an appeal, and -- as we all know -- eventually, the DADT policy was repealed.

Which makes the case moot. District court decision vacated, appeal dismissed. The Log Cabin Republicans got everything they wanted. Except, of course, attorney's fees and an actual decision. But as for the policy itself, it's gone. Which indeed means the judiciary should dismiss the case. The right call.

Judge O'Scannlain files a concurrence in which he says that he'd have voted to reverse. Like that's a surprise. But good to know.

Wednesday, September 28, 2011

I know, I know. It seems crazy. The jury found the defendant guilty of attempted voluntary manslaughter and battery with serious bodily injury, but nonetheless said that it was "not true" that he used a knife even though all the evidence indicated that he did -- that was the only way he tried to kill (and batterred) his wife. That doesn't make any sense. It's clearly wrong. Even though, once the judge individually polled them, they all said, yes, that's their verdict. It's obviously nutty.

Nutty, yes. But you can't send 'em back to correct it. A jury's entitled to acquit someone notwithstanding the evidence. Once they say, yes, we intended to acquit him, it's over. We're done. You can't say, as the trial judge did here, "But you found him guilty of attempted voluntary manslaughter?! Go back and think about this some more and see if you really think it's 'not true' that he used a knife." Even if you do that in the most neutral terms, you've done something wrong. That's the nature of an acquittal in our system.

The Court of Appeal understands. The trial court's error (Judge Genesta, in L.A.) was perhaps a little understandable as well -- it seems facially silly, after all, to allow such a crazy verdict --but it's nonetheless clear error regardless.

I agree with the Court of Appeal that there was probable cause to arrest Reid Nottoli for driving under the influence. He had all the classic signs of stimulant intoxication. I admit that it could have been from all those empty bottles of energy drinks strewn around his vehicle. But I think it a reasonable conclusion that what he was under was actually illegal. Which was, in fact, the case. So I'm on board for that.

I'm also okay with a search of the vehicle incident to his arrest. Now, I know full well why they're actually doing it. To search for drugs. Which is why, contrary to the department's policy, they didn't turn the DUI case over to the CHP. Instead, the police officer got a "tip" from his sergeant -- who told him to call him over the phone rather than over the police radio -- that they suspected Reid of being involved with drugs. Which meant the police were keenly interested in this guy, and this gave them an excuse to search his car. Even though Reid was totally fine having the car left there (it was extremely close to his home) and there was no actual reason why they had to search the vehicle. Especially since Reid was handcuffed in the back seat of a police cruiser and had no access to anything in the vehicle.

But the officer's subjective motivations aren't the test. They had the right to search, so I can be on board for that as well. At least under existing precedent.

But what the officers can't do, in my view, is to turn on the guy's smart phone and page through the suspect's e-mail, text messages and photographs for ten full minutes. That's an unwarranted invasion. That, the court below found, was a violation of his Fourth Amendment rights. And it was totally right. Notwithstanding the fact that the Court of Appeal here decides to the contrary.

This is essentially a general search. Yes, in theory, you might find evidence relevant to a DUI in someone's e-mails or photographs. After all, who knows? Maybe there's a movie that shows them snorting cocaine and getting in the car that night? We're just checking, right?

But that theory justifies virtually an unlimited abrogation of the Fourth Amendment. Especially when, as here, you're permitting the police to investigate and read the vast majority of the writings and other communications that individuals make in the modern era. On that same theory, getting busted for a DUI would permit police to search your home, right? Read your diary. Look through all your pictures. You might have pictures and diary entries in there that prove that you're a cokehead too, after all. So that counts as probable cause too?

This just goes too far. It's not right. It's one thing to say that police can look through a car for weapons or things like that when you're busting someone. It's another to permit them to turn on your laptop -- or smart phone -- and peruse it for anything they might feel interested in looking at.

Tuesday, September 27, 2011

The panel published its original opinion earlier this month. It was unanimous. Judge Gertner, sitting by designation from the District of Massachusetts, wrote the opinion, which was joined by Judges Thomas and Betty Fletcher. Sounds pretty routine.

The opinion was also published on the last day of Judge Gertner's judicial career; she retired from the bench the same day the opinion was issued. That's not routine at all, but not surprising. She knew when her last day would be, and annouced her pending retirement many months ago.. She made sure she got her work done by then. Good job.

But today, the remaining members of the panel -- Judges Thomas and Fletcher -- withdraw the opinion, saying that a new opinion will come out "in due course."

The usual explanation for withdrawing an opinion is that the panel either read a petition for rehearing and thought that there was something pretty good in there or started getting heat from one or more of their colleagues on the Ninth as a result of a petition for rehearing en banc. But here, no petition for rehearing (or rehearing en banc) has been filed; instead, the losing party asked for (and received) an extension until October 11th to file one. Plus, even when a petition has been filed, the more traditional practice is to do the edits and then simultaneously file the new opinion and withdraw the old one.

Sometimes a panel withdraws its opinion because it has decided an issue that a different (lower-numbered) panel currently has under consideration, which gives the other panel priority -- something that the higher-numbered panel sometimes only learns about after publishing its opinion. But I don't see anything especially novel about the opinion here, so that doesn't facially seem to be the case either.

The other possibility, I guess, is that whomever was drawn to replace Judge Gertner wants to dissent. But today's order is only signed by two members of the court. Which suggests that the Clerk hasn't even drawn the replacement yet. Which is slightly unusual itself. Maybe not surprising that they didn't originally draw the replacement already; after all, it looked to everyone like nothing needed to be done until October 11th anyway. But given that we're in fact doing something before then, why not draw the replacement member and put him or her on the panel to vote? (Which I know wouldn't change the result, since we already have the decision by a majority to withdraw it, but still; I think that'd be the usual practice.)

Maybe there's a simple explanation for all this. But I don't know it. Haven't seen this unusual confluence of events before.

Monday, September 26, 2011

Sorry, Richard. I know you thought you had a pretty decent plea: a low term of 16 months for selling cocaine. Not bad given your prior five prison terms. So you took it.

Little did you know that the feds were also investigating you (and other members of your gang). And would indict you all on RICO charges a little bit later. An indictment that included your state guilty plea.

A bummer, to be sure. But not a basis for you to withdraw your plea.

You got what you bargained for. It was less exciting once the United States indicted you, to be sure. But that's not the state's fault. That's a "your problem" rather than "our problem".

Friday, September 23, 2011

On the one hand, it seems crazy to sentence David Fitch for killing his wife. Since he hasn't even been charged with that crime. And we're not even sure that she's even dead.

Sure, he was convicted of taking some money from her ATM without permission. But the guidelines range for that is around 4 years. The district court, however, sentenced him to over twenty years in prison. Adding the extra seventeen years because he killed his wife. A crime, again, for which he's never been charged or convicted.

That facially seems crazy. Which the Ninth Circuit opinion notes, and yet affirms because this result is permissible under current precedent.

On the other hand, I'm confident that Fitch did, indeed, kill his wife. It's one of those "mysterious trips to the wilderness in which only one spouse returns" scenarios. Plus a plethora of other circumstantial evidence that strongly suggests that, yep, Fitch whacked his spouse. Sure, no body. 'Cause the guy's no idiot. But we can still figure it out. If he did indeed kill his wife and then steal her money, that seems wrong, and I don't particularly want him to get away with it.

On the third hand -- let's call it the left leg -- Judge Goodwin has a decent point in his dissent. The trial judge departed upward because he thought it was a premeditated first-degree murder. How do we know? Maybe they had an argument on the trip and he killed her in the heat of passion. Maybe she fell off a cliff by accident (or a spontaneous nudge from her husband) and he was only too-happy to take advantage of it. Is there really "clear and convincing" evidence to support a finding of first-degree murder? When we totally have no idea -- not even the presence of a body -- about how she died?

But, finally, on the right leg, remember: All of this is just an artificial construct anyway. Fifty years ago, judges sentenced people however they wanted. The statutory maximum is 30 years. It was totally okay, in the old days, to sentence a guy committed of Fitch's crimes to one year, four years, twenty years, or whatever based totally on the judge's gut reaction to the defendant. Think he's a pretty decent guy? Four years. Think he's scum (which would include, say, a guy who killed his wife)? Twenty-plus years is fine. No evidence. No factual findings. No appellate review. Nothing. That's the way we did it for almost our entire history. It's still the way we do it in tons of states. Totally proper. So why this crazy reaction to it here?

So choose the most persuasive arm or leg. There are lots of options -- and perspectives -- here.

Thursday, September 22, 2011

The trial court was an overly sticky proceduralist. It was fine for plaintiff's medical expert to attach the plaintiff's medical records as support for his opinion. You don't need to submit independently authenticated documents. If there's a problem with those records (which, of course, there's not), I'd expect defendant to say so.

Moreover, on the merits, the expert declaration raised a genuine issue of material fact. Sure, it's short. But it says why the one defendant allegedly fell below the standard of care. That's good enough.

Ditto for the Court of Appeal's ruling with respect to the other defendant. With respect to that one, the expert's wholly conclusionary opinion -- essentially, a half-sentence -- didn't create a genuine issue. Seems right to me.

The only downside of publishing the opinion is that it's not exactly family reading. A snippet:

"Christine Shugart . . . advised Dr. Warren she suffered from urinary incontinence and had to manually manipulate her perineum in order to defecate, symptoms she had had for a couple of years. Christine had previously had a hysterectomy. . . . Christine was admitted to Mercy Southwest Hospital in Bakersfield, and Dr. Warren performed a transvaginal tape placement and a posterior vaginal repair. . . . As Christine started to wake from the anesthesia, a nurse noted heavy vaginal bleeding. Christine was returned to the operating room to determine the source of the bleeding. Dr. Warren located some "oozing" in one incision and placed additional sutures.

The first postoperative visit was on September 5, 2007. Christine was experiencing a brownish discharge. . . . On September 14, Christine told Dr. Warren she was experiencing pain, more so than immediately after the surgery. Dr. Warren examined Christine, noticed a protruding suture, which she deemed the likely cause of irritation, and removed it. Christine returned again for an examination on September 27. Dr. Warren noted a portion of the tape was 'palpated lateral to the urethra.' Dr. Warren cut the tape slightly to release the 'pinching' and nicked the vaginal mucosa, causing some bleeding. Christine was advised her infection was resistant to the antibiotics, so she was prescribed a different antibiotic. She was told again to return in two weeks.

On October 3, 2007, Christine went to Dr. Warren’s office, complaining of continuing problems, although she was continent. During the vaginal examination, Dr. Warren noted some of the blue mesh/tape was protruding from the incision site. She prescribed a vaginal cream to assist in the healing process and told Christine to return in four weeks. Christine returned to Dr. Warren in early November, complaining that her symptoms were getting worse. During the pelvic examination, Dr. Warren noted there was 'mesh protruding from the vaginal mucosa on the right and midline.'"

It goes on like that for a while. In language that only reaffirms the prescience of my decision to become a lawyer rather than a doctor.

Hubert Cole is a former gang member born in Honduras who entered the United States at age eleven. He's now 40 years old, and has a lengthy criminal history in the United States, beginning when he was a juvenile. He joined the Crips, an African American gang, when he was in prison, and got tattooed with numerous Crip tattoos, including a teardrop under his eye, a G behind his ear, and tattoos on his calves, arms and back. He was shot by rival gang members in 2007, and Homeland Security wants to deport him based upon his long criminal history. He seeks asylum, claiming that he's potentially vulnerable to attack in Honduras from rival gang members who were also deported there and recognize his Crip tattoos.

Judge Berzon writes the majority opinion, noting that tattoo removal is a potentially long and painful process, is somewhat sympathetic to Cole's plight, and remands the case to the BIA for a better reasoned opinion. Judge Callahan dissents, arguing that Cole doesn't really face any danger in Honduras and that the BIA's opinion was reasonable.

Judge Noonan writes a brief concurrence. He says that if the tattoos are the problem, then Cole should get rid of them. That the BIA should potentially allow Cole some time in the U.S. to get them removed before he's deported, but if they do -- or if Cole declines -- then off he should go.

This seems pretty reasonable to me. I'm not especially sympathetic to a dude with a huge criminal history who claims to be entitled to stay in the United States because it's a pain to laser your extensive tattoos. I would have hoped you had thought about that before you decided to paint your body with Crip slogans. I also imagine that getting them removed causes a lot less pain than, say, getting shot. I'm not too excited about a claim that one's voluntary decision to visibly associate yourself with a criminal gang means that you are now entitled to stay in the United States forever. Even if reversing your (own) decision would cause you a fair amount of hassle and inconvenience.

I'm sure that Cole's argument is that he'd just love to remove the tattoos if he could, and as a result be deported to Honduras forever, but, shucks, I just can't because it's too painful.

Plenty of people get tattoos removed because they're a sign of youthful indiscretion. Cole's can do the same. Especially since his indiscretions were even more indiscreet than your average person.

Wednesday, September 21, 2011

Here's a hypothetical. You're hanging out at your house in Mexico. Two armed men come to your home and tell you to smuggle marijuana across the border or else you and your family will be killed. They tell you that they'll be watching you at the border. They take you away at gunpoint, put you in a car, and tell you to drive. You fear that they're watching you and that, at the slightest misstep, they'll kill your family. You drive to the border.

Assume all those facts are true. Do you have a valid duress defense to present to the jury?

The Ninth Circuit's theory is that you could have avoided this problem by contacting the authorities after the armed intruders initially threatened you, or could have told the police at the border about the threats against you before you tried to enter. There's indeed prior Ninth Circuit precedent that makes that same argument.

But isn't this a little unrealistic? Imagine that this is you. Sure, there's a chance that they won't really kill your family. Sure, there's a chance that you could get the police to arrest the perpetrators. Sure, there's at least the hope that if you tell the authorities everything -- whether at the border or beforehand -- the armed thugs won't pull the trigger and blow your children away. Either because they think (rightly, I might add) that you have betrayed them, or simply because they're pissed off? Like that never happens in Mexico, right? The home of beheaded, tortured civilians.

Sure, there's the possibility that surrender will prevent your family's demise. But is that really what the law requires? As a categorical matter? That because these possibilities exist, you can't argue at all to the jury that you were under duress?

This seems needlessly harsh. Why not trust a jury of twelve reasonable people? They can presumably see the same alleged flaws in defendant's story as the Ninth Circuit can. Is it really an undue risk that a jury will routinely buy these defenses? Especially compared to the risk that, one day, someone will actually do what the Ninth Circuit wants them to do and end up getting their family murdered. That's the right tradeoff?

Let me put it this way. Imagine that its you, and your family. Someone kidnaps your daughter and tells you to deliver some marijuana otherwise they'll kill your kid. You find their threats credible, and also think that if you do what they say, your child will be safe. Sure, maybe they've already released her, and there's a risk that they'll kill her anyway. But you figure the best way of keeping your kid alive is to do what they say. While delivering the drugs, you have to stop for gas and, while going to the bathroom, notice a police officer right next to you. They say you're under surveillance, but no one's in the bathroom. No one can hear what you say to the police. Are you really compelled -- as a matter of law -- to risk your daughter's life and tell the police what you know? Under penalty, say, of a twenty-year mandatory minimum if you don't? Or can you instead be permitted to at least ask the jury to put themselves in your shoes? To see if they'd have made -- and perhaps should make -- the same choices you did given the information you had available to you?

The Ninth Circuit's holding says, essentially: "Tough. You had a chance to surrender. Even if there was an unstated (yet entirely understandable) fear they'd kill your family as a result, we don't care." I'm not sure the law needs to compel such a dangerous choice.

Tuesday, September 20, 2011

First of all, Moses, what are you doing hanging out on MySpace and a web site called "Vampire Freaks" anyway? You're 23 years old, for goodness sake. Time to move out of your parents' basement, get a good (or at least real) job, and start visiting slightly more sophisticated web site. The California Appellate Report, for example. May help keep you out of trouble.

Second of all, yes, I know, she says she's 18, but when you met her at the library near her home, you knew she looked younger than that. Yes, yes, I know. She said that "baby faces run in [her] family." But there's a big, big difference between a 13-year old -- which is what she is -- and an 18-year old. Something I'd hope you'd know, having (hopefully) been with some more age-appropriate women in the past.

Third of all, what were you thinking taking pictures of the two of you together engaged in intimate activity in the back seat of your car?! First off, you shouldn't have been doing it. She's 13. Second, why preserve for the prosecutor indisputable evidence of your crime? Third: Gross. Finally, you seriously can't come up with a more intimate place than the back seat of your car? Twice? How romantic: Oral sex in the back seat of a car with a 13-year old while you take pictures. Lovely.

I'm not even going to mention your inability to maintain an erection when you tried to have sex with her.

I know it's all consensual. But she's 13, Moses. I don't care how "mature" of a 13-year old, or how she told you she was 18 (which she admittedly did). She's 13. You should know that. Deep down, you did; and the jury so found. Which is why your sentence is pretty darn severe.

Don't think Moses is the only one who needs to rethink his life. C.C.: Come on. Creating a MySpace page that says you're 18 and telling 23-olds you're legal so you can give them a blowjob and try to have sex with them? You can do better. And Vampire Freaks? Seriously. Even at 13, that's just silly. (Of course, as I type this, I note that the Vampire Freaks site has over 1.5 million members. Including over three thousand members online right now. Which perhaps explains part of why I fear for our nation's youth.)

Parents of C.C.: I know. You don't expect your thirteen-year old daughter to be doing this stuff. I get it. I have a ten-year old daughter myself. But if she starts a MySpace profile and hangs out at Vampire Freaks, you can be darn sure I'll be having a serious talk with her.

Monday, September 19, 2011

What I like the most about Judge Bybee's opinion is that he admits that the issue is a close one. In addition, near the end of his opinion, he makes arguments that go a long way towards persuading me that even though it might not be equitable to allow the debtor to get a discharge here, there are alternative ways of avoiding that consequence apart from the path taken by the government in this litigation. That was important to me.

But I think that, in the end, I'm still leaning towards Judge Fisher's dissent. Though I too admit that the issue is indeed a close one.

The statute doesn't necessarily tell you what to do; everyone admits that the language is ambiguous (which it is). In the end, although both the majority and the dissent have good policy arguments, I'm left with the same impression I had at the beginning. An attorney gets money from someone who's violated the securities laws. He's supposed to put that money in trust, but instead spends it. He then promptly files for bankruptcy. Is he shielded by the bankruptcy laws from having to give that money back? (Or, perhaps more accurately, does he obtain a discharge that says because he doesn't have the money, he doesn't have to pay it back?)

It just seems to me that we shouldn't allow this. Judge Bybee's correct that the lawyer didn't commit the securities fraud himself. But he got money from it regardless. It's "from" the fraud. Moreover, it's money that should have been held in trust -- that wasn't even the lawyer's in the first place. He essentially stole it. Now, Judge Bybee says that maybe the government should have charged the debtor with defalcation or fraud, both of which preclude a discharge. That sounds right to me, and it was that section of the opinion that had me the most on board. But the government can't do that since they're time-barred. So should we stick it to the government -- which is seeking recovery for the defrauded investors -- and let the wrongdoing debtor enjoy the fruits? Maybe. It just sticks in my craw. And if there's an alternative way out, as Judge Fisher argues there is, maybe we should take it.

Plus, I'm not sure that Judge Bybee adequately responds to the possibility that the majority's holding will provide a safe haven for illegitimate transfers of ill-gotten booty. What's to stop someone who defrauded investors, once he's caught, from giving all the money to his lawyer (or a friend) and then having that third party declare bankruptcy?

Judge Bybee first argues that if the third party participated in the underlying fraud, they'd be an aider and abettor and thus not granted a discharge. But that's substantially nonresponsive; in our hypotheticals, the third party didn't do so. They're an attorney, grandmother or friend. Judge Bybee then argues that a third party can be denied discharge in these cases if they don't disclose assets to the bankruptcy court. This is again substantially nonresponsive; the third party in these cases would indeed disclose the ill-gotten money, but would nonetheless seek a discharge. So far, it works. And why not do it?

Judge Bybee's best response is his final one, in which he argues that such a scheme wouldn't really benefit a debtor because they'd have to give the money to creditors anyway (since, after all, they're going bankrupt). But that's not true either. There are lots of exemptions. Move to Florida. Buy a multi-million dollar house with the proceeds. And then file for bankruptcy and claim that the entire amount is exempt. Seems like that works to me. You've now got money that you wouldn't otherwise have, and Judge Bybee's opinion doesn't permit the government (or defrauded investors) to get it back. Indeed, after today's holding, why wouldn't defendants and third parties do this? The culpable party's been caught and is going to have to disgorge the money anyway. And the benefits that accrue to the third party -- the multimillion dollar home -- seem to be worth the bankruptcy filing and resulting fight (if any). Grandma gets a mansion and the defrauded investors get the shaft.

I understand Judge Bybee's desire to give the debtor a fresh start. Which is indeed a fundamental purpose of the bankruptcy code. But I'm also worried about the adverse consequences of this rule. If the statute clearly created those consequences, well then, so be it. But it doesn't. At least not necessarily.

I'm sure my reaction here is colored by the fact that it's an attorney who's the debtor. The guy took money -- lots of it (over a half million dollars) -- that should have been held in trust and that he didn't earn. By taking that money and spending it, he benefitted. And now he largely gets off. He has to repay the money if he has it, of course. But he doesn't. He spent -- and enjoyed -- it. That seems wrong, at least if there's a way out.

So I agree with Judge Bybee that it's a close case. But I think I still lean towards Judge Fisher's side. Judge Bybee comes close to persuading me. But only close.

Thursday, September 15, 2011

Judge Rawlinson writes a brief concurrence that describes Judge Tashima's opinion as "excellent." I agree. Yes, we want securities lending; that way the market can more effectively allow short-selling of securities, a practice that in turn makes the market somewhat more efficient. Yes, we do not want the tax laws to overly burden this practice, and so in a legitimate loan -- where no risk of loss transfers -- we don't recognize that as a tax recognition event.

But that's not what Henry Samueli -- the billionaire co-founder of Broadcom -- was doing. Sure, he was making a bet on short-term interest rates. A nominal bet of $1.7 billion, no less. This indeed exposed him to gains and losses in the market, so this wasn't a "fake" transaction designed entirely for tax avoidance.

But the reason he employed a securities loan as a fundamental portion of that transaction was. He could have easily made the bet without the loan. But he did the loan portion of the deal to enable the taxpayer to make this bet while simultaneously (1) getting the benefits taxed at low capital gains rates, while (2) getting the expenses (interest) deducted at the much-higher marginal rates. That's the economic substance of this portion of the transaction. And it shouldn't -- and thankfully doesn't -- work.

The IRS is not overreaching here. It's instead doing exactly what I'd hope it would. Great job, IRS, Tax Court, and Ninth Circuit.

I'm trying to figure out who the mysterious "M.H." is in this opinion. S/he lives in San Diego. S/he's rich. S/he almost certainly has (or at least had) Swiss bank accounts, and similarly almost certainly was illegally evading taxes with the help of UBS. S/he also has enough money -- and incentive -- to hire Sheppard Mullin to try to get out of a grand jury subpoena (and to prosecute an appeal to that effect) that requires production of the relevant bank records, as well as to post a cash bond of $250,000 when s/he was found in contempt for failing to follow the district judge's order to produce the record (which the district court nonetheless stayed in order to allow M.H. to prosecute the appeal).

There's no one on my faculty with those initials. Not that they'd have the $ anyway. I'm betting s/he lives in La Jolla. Or Rancho Santa Fe. And probably isn't the only one in his or her community who's using overseas accounts to evade taxes.

M.H. just got caught. Since s/he had the misfortune of using UBS, which ratted its customers out when it was caught.

Wednesday, September 14, 2011

It's not that Judge Bybee gets it wrong. He doesn't. The BIA says that you're convicted of an "aggravated felony" (and hence ineligible for cancellation of removal) of you're sentence to a term of imprisonment of at least "one year". Habbi was sentenced to 365 days in jail. But it was a leap year. So Habbi says that he hasn't served "a year" in prison.

A regular jurist might respond simply by saying: "The BIA nonetheless has said at every 'year' is defined as 365 days, and this is entitled to deference under controlling precedent, so Habbi loses." Which would be entirely correct, as well as sufficient to resolve the case. And, don't get me wrong, Judge Bybee's opinion does indeed say that.

A different jurist might alternately -- or additionally -- respond by saying: "We already decided a Ninth Circuit case called Matsuk in which an equally-creative lawyer with a client who also served 365 days argued that his client hadn't served a 'year' since the Earth actually takes 365.24 days to revolve around the Sun (which is why we have leap years), and that case is binding since the present case is no different: we simply don't count leap years." That'd be correct as well. And, again, Judge Bybee says that too. He also (smartly) notes the policy consequences of the defendant's proposed rule, which would treat defendants who were sentenced to identical time (365 days) for identical crimes differently depending on whether they were sentenced it a leap year or not. That doesn't make sense.

But when you're an academic type, you might not end there. As Judge Bybee doesn't. Sure, the case is all about leap years, and all you really need to know for that is that we have one every four years. It's a simple concept. But Judge Bybee goes further, and early in the opinion articulates expansive exegesis on the fact that leap years "would solve the problem [of the 365-day calendar not corresponding to an astronomical year] entirely if a natural year were actually 365.25 days. However, because the actual figure is slightly less at 365.24237 days, adding a full day every four years ends up overcompensating. To correct this, the Gregorian calendar approximates the natural year at 365.2425 days. As a result, we omit leap year every 100 years, in years ending in “00,” except once every 400 years. Therefore, while the years 1600 and 2000 were leap years, the years 1700, 1800, and 1900 were not." In short, explaining the lesser-understood (but entirely accurate) concept of essentially "anti-leap centuries" -- which, for the fancy amongst us, are called "common years" versus "end-of-century leap years."

Does any of this matter to Habbi? Or to the appeal (or issue) at hand? No. Not one bit. You don't need to know about the occasional century exceptions to the leap year rule to decide whether a year is indeed 365 days. All you have to know is the basic leap year rule. But Judge Bybee wants you to know more.

I'm not complaining, of course. I like entertaining stuff. As well as learning information I don't already know (though this particular stuff isn't new to me).

But that's what you get sometimes when you put professorial types in black robes. Tangents. Interesting tangents, occasionally. But definite tangents.

Tuesday, September 13, 2011

"In a petition for rehearing, the Attorney General scolds this court for questioning the continued vitality of Ford and lectures us that we are bound by Ford because it has not been, in the Attorney General's words, 'clearly superseded.' This diatribe fails to recognize that we distinguish Ford; we do not refuse to follow it. Furthermore, we may be bound, but we are not gagged."

"Scolds," "lectures" and "gagged," eh? Tell us what you really think. :-)

It's really, really good. Regardless of whether you agree with it -- and it involves a controversial issue -- it's incredibly coherent, comprehensive and tight. It's written extremely, extremely well. It's an extremely good primer on the issue. Well done. Very.

I'll not tell you how the case comes out. You should read the opinion for yourself. But here's the issue:

A public school teacher down here in Poway (a suburb of San Diego), Bradley Johnson, teaches mathematics (at Westview High School). He hangs two large banners -- each about seven feet wide and two feet tall -- on the wall of his classroom. One has red, white, and blue stripes and states in large block type: “IN GOD WE TRUST”; “ONE NATION UNDER GOD”; “GOD BLESS AMERICA”; and, “GOD SHED HIS GRACE ON THEE.” The other states: “All men are created equal, they are endowed by their CREATOR.” You can look at pictures of the banners in the appendix to the opinion if you'd like. He's the faculty sponsor of the Christian Club, but says that his banners are purely patriotic, with no religious purpose.

The school district tells him to take down the banners but is free to put up these things in context if he'd like (e.g., to put the entire Declaration of Independence on his wall). Johnson refuses, saying that he has a protected First Amendment right to say what he wants on these issues, whereas the school district contends that he's a government employee so his speech rights are limited. Johnson ultimately complies with the order and takes down the banners, but promptly sues. He also visits other classrooms shortly after filing suit and photographs other teachers' walls that he believes display sectarian viewpoints, including Tibetan prayer flags; a John Lennon poster with “Imagine” lyrics; a Mahatma Gandhi poster; a poster of Gandhi’s “7 Social Sins”; a Dalai Lama poster; a poster that says, “The hottest places in hell are reserved for those who in times of great moral crisis, maintain their neutrality”; and a poster of Malcolm X.

Who should win?

It's far from a no-brainer. The district judge, Judge Benitez, granted summary judgment to one side. The Ninth Circuit reverses -- unanimously -- and orders the granting of summary judgment to the other side. So clearly reasonable minds both can and do differ.

Plus, check out the lineup of the amici. You can easily (and accurately) guess which side the Thomas More Law Center is going to be on, which side the National School Boards Association supports, and where Americans United for Separation of Church and state stands. But what about the ACLU? Which side do you think they're going to come down on?

All good questions. Which make the opinion only even more worth reading.

Monday, September 12, 2011

Let me take Judge Ikuta's dissent first. I disagree. Plaintiffs here did indeed plead that defendant committed a deliberate act -- the filing of a false affidavit against them -- that led to the seizure of their money. That's a tort. Federal court has notice pleading. You don't have to label your causes of action -- we plead facts, not labels -- so the fact that the complaint doesn't contain a separate "claim" for "state law fraud" doesn't matter. The facts are there. So the majority's not making up a claim that doesn't exist.

Moreover, though it's doctrinally irrelevant, it sounds like the plaintiffs actually have a pretty good claim in this regard. Plaintiffs had a lot of money in their carry-on bag. But that's what professional gamblers do, and the fact that they were in transit from San Juan to Vegas -- and had oodles of proof that they were gamblers -- does indeed suggest that the federal government shouldn't have seized this cash on their stopover in Atlanta. And it sounds like the agents did indeed leave out tons of stuff in their affidavit that would have established no probable cause to initiate a forfeiture action. In short, I don't think the majority is stretching at all, either doctrinally or factually, in an attempt to fabricate a claim that doesn't exist.

So Judge Ikuta doesn't think plaintiffs can legitimately make the argument that the majority accepts. I don't agree. It seems fairly presented to me.

On the other hand, I disagree with the majority's disposition of this claim. Judge Berzon (joined by Judge Goodwin) says that there's personal jurisdiction in Nevada -- even though the funds were taken in Georgia -- under the Calder effects test. That test basically says that if you deliberately engage in a tort directed at the forum state, there's personal jurisdiction there. Judge Berzon's opinion is very detailed, and goes through the various factors and precedent on this issue pretty exhaustively. So it's not that I disgree with her mode of analysis, or think she's sloppy.

I just think she gets it wrong.

That's not a huge slam. The precedent here is confusing and partially contradictory, even at the Supreme Court level. And Ninth Circuit precdent only makes things worse. There's no real coherent way to justify these assorted cases, depending as they do so much on both their facts and upon the individual views of the particular judges on the panel.

But I still think Judge Berzon's wrong. The effects test requires a degree of intentionality and direction that is simply not present here. The defendant did what he did in Georgia. When he took the money, he had little idea that the plaintiffs were from Nevada; indeed, they showed him California driver's licenses. Moreover, when he allegedly filed the false affidavit, sure, at that point he might have had an inkling of the connection of Nevada to the various disputes. But what he did still wasn't intentionally targeting the forum state in the way the Calder effects test properly requires. He was justifying the seizure of money that took place in an Atlanta airport by a Georgia citizen. The fact that he might reasonably anticipate this conduct would have an effect in Nevada is insufficient.

I'm being somewhat skimpy in my analysis because it's a complicated issue, and you could write -- and people have -- entire law review articles on the topic. But this is a good example of why it's important to have a broad diversity of types of people on the bench; and by "diversity," I mean that in its largest possible sense. Prosecutors and defense attorneys have unique perspectives, and add value. So do big- and small-firm lawyers. Each brings something different to the table. Even adding a politician or two to the mix might be a good addition. They know about the workings of the Legislature and the political elements to various things. And, of course, elevating district and state court judges makes sense too, and you can often double-dip (since these judges obviously had a prior history having been lawyers, having presumably not been born in black robes).

Law school professors add value too. Think, for example, Judges Bybee and Willie Fletcher. The good thing about a full-time academic gig is that you get the time and space to really think about complicated issues in depth. Including but not limited to this one. The Calder effects test, for example, is something that many civil procedure professors (including me) teach year-after-year to first-year law students. And when you're teaching or writing about something for decades, not surprisingly, you get to have a little depth in the field. A depth that's not quite the same as focusing on the topic -- as smart as you (and the underlying lawyers and briefs might be -- for one of your dozen different oral arguments that week. My own view on this topic has changed (or "evolved") over time. For the better, hopefully. With a more sophisticated understanding than perhaps I had at the outset.

Here's also an area where the Ninth Circuit -- and appellate courts in general -- can do some legitimate good. The Supreme Court's taken only a couple of cases on this topic. They set general contours, but otherwise aren't especially helpful. It's up to the Court of Appeals to work out the kinks, and to set the relevant principles. Often, they do so haphazardly and in case-specific adjudications that simply make a mess. Both for litigants and for future panels. That create real transaction costs and that don't coherently establish or apply a set of fundamental principles. It's not that they always get the wrong result, mind you. The problem is that they may well get the wrong result, and that even when they get it right, they do so in ways that don't help develop, establish or properly apply the law.

This, in my view, is one of those opinions. Which is unfortunate.

I think there are coherent ways to interpret the effects test to make sense. To apply the intentionality requirement in a way that makes purposeful availment -- which is the touchtone of minimum contacts -- meaningful. That's something the panel here could have done. Or if they thought that circuit precedent was inherently confusing and self-contradictory (which it somewhat it), to have suggested a set of principles that would rationalize the majority of these cases even if it would require an en banc court to actually adopt. A way that other circuits might then sign onto -- or would at least be forced to consider -- and that might thus create a consistent national rule or, at a minimum, give the Supreme Court food for thought.

But neither the dissent nor the majority here does that. Which is too bad.

I taught the effects test to my Civil Procedure I class just last week. When I started reading this opinion, I was initially very excited. It looked like it was sufficiently detailed and erudite to perhaps assign as optional reading for my students; to say: "Here's a pretty good exegisis from the circuit in which you'll likely practice on what the effects test entails."

But I can't. Not because the majority gets it wrong -- it does, but that's no matter, since students can learn a lot from even erroneous opinions. Rather, because although the majority accurately sets forth all the various tests and steps that arise from precedent, it doesn't rationalize these cases or make actual sense of the body of law that it applies. Yes, it says: "Here are the prior cases, and we think ours is more like X than Y." But it doesn't make sense of either X or Y, or really grapple with the difficult central issues here.

Which is too bad. Because particularly in areas that arise in numerous cases and yet rarely are the subject of appeals (e.g., interlocutory personal jurisdiction issues), we could use some clarity. Clarity which this case had the potential to bring. But, in the end, the Ninth Circuit's opinion only makes the issue more, rather than less, opaque.

There was, in my mind, no personal jurisdiction over this defendant in Nevada. The case should be litigated in Georgia. Defendant didn't "reach out" in the relevant manner to purposefully avail himself of the benefits of Nevada. He shouldn't be forced to litigate, or even object to (or move for a transfer of) venue. The Ninth Circuit's holding to the contrary isn't bizarre, but it's not one that advances the ball. Nor does the dissent.

Friday, September 09, 2011

This will show you how easy it is to apply the FLSA's "learned professional" exemption, which says that employers don't have to pay overtime to someone who works in a job that requires "knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction;" e.g., doctors, lawyers, etc.

Give up? (A) and (C) are indeed professionals, according to the Fifth and Tenth Circuits, respectively. (B) and (D) aren't, according to the Eleventh and Fifth Circuits, respectively.

What percentage did you get right? No way I'd have gotten 100% before reading the Ninth Circuit's opinion on the issue.

Here's your bonus question: According to the Ninth Circuit this morning, are social workers in Washington State learned professionals? Additional relevant facts: To be a social worker there, you have to have a bachelor's degree in certain specified fields (e.g., counseling, psychology, social work, etc. -- majors like history, law, nursing, and law enforcement don't count), complete a six-week training program in social work, and have eighteen months of experience in social work.

Wednesday, September 07, 2011

Judge Callahan begins her dissent in this case by saying: "The police acted admirably, reasonably, and lawfully throughout the events giving rise to this case." That seems right to me. With the exception of the words "lawfully" and "throughout."

Police officer Ryan Moody was cruising a high-crime (read: low-income) area in Lakewood, Washington known for drug dealing and prostitution, including underage prostitution, at 3:30 a.m. He did what I would hope many police officers would do in that setting: checked lots of random license plates for outstanding warrants and stolen vehicles. Because there's probably a nontrivial number of those. On the theory that a decent number of people out at 3:30 a.m. in such an area are up to no good. Moreover, getting a "hit" on the plate gives an officer probable cause to stop the cars, and then you'll be able to pick people up for parole violations, drug crimes, DUIs, and lots of other stuff. That's the way these things work.

He runs one of the plates and it comes back as registered to a black Pontiac Grand Am. But the Grand Am it's attached to is gold. Moody knows that sometimes you steal plates to hide the fact that the actual car you are driving is also stolen. And you can't always find a perfect match, so sometimes you steal plates from (for example) a black Grand Am since it's the closest you can find. So he pulls the car over.

The majority, in an opinion written by Judge McKeown, says that this is a "thin" basis for stopping the car and that it's an "exceedingly close" question as to whether that counts as "reasonable suspicion" of a crime. Not for me. I agree it's not illegal to paint your car, and there's no requirement to update your registration with the current color. But we're talking reasonable suspicion here. A nontrivial number of plates in such a high-crime location at 3:30 a.m. are going to turn out to be stolen. I think you can stop someone for that.

Is it crystal clear? No. But I'm not sure it's "exceedingly close". "Close" is as far as I'd go, and I'm not even sure I'd go that far.

So things are okay, at least in my view, thus far. Then Moody approaches the vehicle and sees that the driver is a 51-year old guy he recognizes from two prior traffic stops. Read: A Likely Criminal. Moody's already-tingling spidey sense goes off even stronger when he sees the driver's passenger, who's a girl who looks to be 12 or 14 years old. A teenager hanging out with an unrelated lowlife at 3:30 a.m. in a high-crime area known for prostitution? Read: A Potential Underage Prostitute.

Alarms go off even further when the girl is nervous and doesn't make eye contact. But Moody goes ahead and asks the driver for his license and registration, and verifies that, yep, everything's okay. It's his car, and the VIN numbers (which Moody checks) match. The driver says he recently painted the car. That's what he indeed clearly did. The guy's committed no crime. Time to let him go.

But Moody's still suspicious of the girl. And, by implication, the driver. Rightly so, in my view. She might be a runaway. A prostitute. Both, likely. Or maybe even kidnapped. So he continues to detain the vehicle and interact with the passenger.

I get that there's an argument that this unnecessarily -- and arguably unconstitutionally -- prolongs the length of the stop of the vehicle. But I nonetheless think it's reasonable. There's something wrong here, and what Officer Moody knows seems to me sufficient reasonable suspicion to prolong the stop for a little bit despite the fact that what he originally stopped the car to investigate turns out to be a non-issue. It is, as Judge McKeown rightly notes, an "evolving situation," and so I continue to be okay with the stop thus far.

The tingling in Moody's brain gets even stronger once he asks the passenger her name and how old she is, she responds with a name and says she's 19 (but has no identification), and then he runs her name and date of birth and comes back with an arrest warrant for that exact name and date of birth but a different year -- three years later than the girl claims she was born (which would make her, in fact, 16). That makes Moody think two things: (1) the girl has repeatedly lied to him (which is a crime), and (2) the girl may well have an arrest warrant out for her.

At which pont Moody can probably arrest her. The majority opinion says that this is crystal clear, and I'd personally lean more towards "likely". Seems like there's probable cause to me. Could be, of course, that there's another person with the same name and month/day of birth. I'm not sure how likely that is, since we only know her initials (S.F.) and don't know if that's an unusual or common name. But that's still likely to be probable cause for me.

So again, up to this point, I agree with Judge Callahan's opening line. What the officer has done is, at this point, both reasonable and commendable. I like my police officers like this.

It's at this point, however, that Judge Callahan and I diverge. Officer Moody (and the backup officers he called) doesn't arrest the girl, who (alongside the driver) have been removed from the vehicle. Rather, he decides to search the vehicle. Ostensibly to see if he can find any identification for the girl. (We all know why he's really searching, but remember that the subjective intentions of the officer don't matter. At which point he finds -- surprise! -- drugs in the center console, at which point there's a further search which finds more drugs and a firearm. Leading to, predictably, charges against Rodgers.

That's the part at which the facts become unreasonable and a violation of the Fourth Amendment. There's no reason whatsoever to believe that the girl has ditched identification in the vehicle. There's no "she was staring longingly at the console" or anything like that -- and even then, such conduct would hardly have reflected her worry about identification -- and there was already probable cause to arrest her, and she could accordingly have already been booked and printed. Moreover, if (as Officer Moody allegedly suspected) she was in fact only 14, she likely wouldn't have identification anyway, and the theory that he could reasonably search the vehicle in order to find a library or YMCA card -- which wouldn't have her birthday on it anyway -- is silly. At this point, there's a basis for arresting her, but no basis for searching a car to which she no longer has any access (having been removed from it). You're simply looking for evidence of a (different) crime. That's not allowed. Which is what the Ninth Circuit rightly holds.

As I was reading the case, I thought it'd be about the stop and arrest of the girl. I would have been slightly conflicted but ultimately okay with that, and thought (from the lineup of the panel) that the majority was going to hold otherwise and that I'd thus disagree. But even though I have slight disagreements with portions of Judge McKeown's opinion at the margins, as for what the case actually turns on, I agree with her.

Which is not to overlook the fact that I also agree with a portion of what Judge Callahan says. What Officer Moody did here was perfectly fine, and his concern for the teenage girl was affirmatively commendable. I do not have a doctrinal problem with most of what he did. Right up to the point he searched the car.

At that point, he crossed the line. And turned an otherwise permissible stop into a violation of the Fourth Amendment right to be free from unreasonable searches and seizures.

Tuesday, September 06, 2011

Some cases make you do a double take even before you start reading them.

The named parties in the caption of this opinion are familiar ones. Governor Edmund Brown, Jr. State Controller John Chiang. Secretary of State Debra Bowen. None of that's unusual. You see these government officials on captions all the time.

But here's the rub. Those are the only people named on the caption.

Governor Brown's the plaintiff. John Chiang's the defendant. Debra Bowen's the intervenor. You mean to tell me that the Governor sued the Secretary of State and Controller?! Wow. Talk about a disfunctional government. Not to mention a conflicted Democratic Party, in which all three politicians are members.

But it gets even weirder. The plaintiffs (Governor Brown) are represented by private counsel on appeal. Who are the lawyers who represent the defendants and intervenors? Let's see, the first name on the list of counsel is . . . Edmund G. Brown, Jr.! To put it differently, Jerry Brown is the lead lawyer defending a lawsuit filed by none other than himself.

There's obviously a backstory, otherwise this would be both surprising as well as a massive conflict of interest. And once you start reading the opinion, although the Court of Appeal doesn't mention the topic, you start getting a tolerable sense of what transpired to create this unusual line-up. The litigation involves the validity of the governor's executive order that ordered furloughs of state employees during the state budget crisis. Who issued that order? Governor Schwarzenegger. Who didn't like that order? Among other people, the Controller, the Secretary of State, and other elected officials, who did not like seeing members of their staff furloughed. So, for example, the Controller refused to implement the order, claiming it was illegal. At which point the Governor filed for a writ of mandate directing implementation of the order (as well as, as a political matter, using his line-item veto to slash the budgets of the officials who didn't comply).

The trial court expedited the writ and directed the various state officials to comply with the order. At which point they filed an appeal. Which, needless to say, was not instantly resolved.

What transpired in the meantime? An election. So by the time the opinion rolled around, Governor Schwarzenegger -- the one who made the order, and was defending it -- was no longer in office. And Jerry Brown, who was the Attorney General, was now the new governor. But the lawsuit, filed on behalf of the governor in his official capacity, continued apace. The net result of which was the line-up you see in this opinion, with Jerry Brown ostensibly on both sides of the lawsuit.

In the end, the Court of Appeal affirms the trial court. The orders were valid. Both for regular employees as well as for employees of elected officials.

So Jerry Brown the plaintiff wins. To the chagrin of Jerry Brown the attorney.

Which means, I imagine, that one Jerry Brown gets a victory party while the other a consolation party.

Thursday, September 01, 2011

I didn't know that when you buy premium gasoline in many gas stations, you're not actually getting premium gasoline. At least not at the outset. Not that I actually buy premium gasoline. But if I did, I'd definitely be interested to know that the first two- or three-tenths of a gallon that you receive out of the pump generally consists of non-premium gasoline that was left over from the previous person who used the pump. So you are paying for, say, five gallons of premium gasoline but only receiving 4.7.

Admittedly, that may only deprive you of a dime (or less) each time. But dimes add up. Especially when you're doing it thousands of times and multiplying it by tens of thousands of customers.

Does this happen at all gas stations? No. Only ones with a single pump for multiple grades. So gas stations could do what other gas stations do and have a separate handle for each grade. Or they could charge you a little less, or make some disclosures. None of which they do. Hence the class action.

Again, I'd have thought that was a pretty decent claim. But apparently I'm wrong. It's allegedly preempted by various laws that regulate gasoline sales. At least according to the Ninth Circuit. So dismissal affirmed.

Still, it's something I'd have thought consumers should know.

My reaction, by the way, would be a little bit stronger if the defendants were actually benefitting from this practice. But they're not. Sure, regular gasoline is often left in the pump, which hoses (no pun intended) the buyers of premium gasoline. But premium gasoline is then left in the pump for the next buyer, who then gets a "bonus" when the pump first begins. So for the gas station owner, it's a wash; s/he still dispenses the same amount of expensive gasoline, so there's not a deception-based incentive to switch to single pumps.

That doesn't matter to the Ninth Circuit (which doesn't mention it), nor does it matter to the preemption analysis, but it made a difference to me when considering the equities of the dismissal. It doesn't make the particular premium-grade consumer any happier, I'm sure. But from a systemic and deterrence perspective, it has an impact.